CINCOM SYSTEMS, INC.
LIMITED VALUE ADDED REMARKETING LICENSE AGREEMENT (LVAR)
FOR CINCOM SMALLTALK
READ THE TERMS AND CONDITIONS OF THIS LVAR LICENSE AGREEMENT CAREFULLY BEFORE PROCEEDING TO USE THIS COMPUTER SOFTWARE AND THE ACCOMPANYING USER DOCUMENTATION (THE “PRODUCT/PRODUCTS”). THE PRODUCT IS COPYRIGHTED AND ITS USE IS LICENSED (NOT SOLD). BY DOWNLOADING AND/OR INSTALLING THE PRODUCT ON A COMPUTER AND USING THE PRODUCT, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LVAR LICENSE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LVAR LICENSE AGREEMENT, YOU SHOULD NOT DOWNLOAD OR, USE THE PRODUCT AND PROMPTLY DELETE, DESTROY OR RETURN THE PRODUCT. THIS LVAR LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PRODUCT BETWEEN YOU AND CINCOM SYSTEMS, INC. (REFERRED TO HEREIN AS “LICENSOR”), AND THIS AGREEMENT SUPERSEDES ANY PRIOR PROPOSALS, REPRESENTATIONS, OR UNDERSTANDING BETWEEN THE PARTIES PERTAINING TO THE PRODUCTS GOVERENED UNDER THIS LICENSE AGREEMENT.
- License Grant. Licensor grants to you, subject to the terms and conditions contained in this Agreement, a nonexclusive and nontransferable limited license for a single developer to use the proprietary computer software programs and related materials known as Cincom Smalltalk (Products) and described in Exhibit 1 attached. You may use the Products to the extent required for you to develop computer services, applications, software or hardware to operate with the Products. However, you do not have a license to market or deploy the Products until you contact your local sales representative and execute a standard VAR Agreement for the country you are working in (ask your sales representative for a sample standard VAR Agreement). You agree not to disclose the Products to persons or organizations which offer computer software program(s) in competition with Licensor. You agree that you receive no rights other than those expressly granted to you in this LVAR License Agreement.You may make one copy of the Product for the purpose of backup in the event the Product is damaged or destroyed. Any such copies of the Product shall include Licensor’s copyright and other proprietary notices. Except as authorized under this paragraph, no copies of the Product or any portions thereof may be made by you or any person under your authority or control.
U.S. Government Restricted Rights: Licensor provides the Product with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government or any agency or instrumentality thereof is subject to restrictions set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Software – Restricted Rights clause at 48 C.F.R. 52.227-19, or any successor provision, as applicable. The Contractor/Manufacturer is Cincom Systems, Inc., 55 Merchant Street, Cincinnati, Ohio 45246.
- Licensor’s Rights. You acknowledge and agree that the Product is a proprietary product of Licensor protected under U.S. copyright law and international treaty provisions. You further acknowledge and agree that all right, title, and interest in and to the Product, including associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to you an interest in or to the Product, but only a limited right of use revocable in accordance with the terms of this License Agreement.
- License Fees. In consideration for the Limited License Grant, you must pay a license fee of U.S. Five Hundred Dollars (US $500.00).
- Term. This License Agreement is effective upon delivery of the Product to you and will remain in effect for one (1) year from delivery. At the end of one year if you wish to continue use of the Products under this license agreement you must renew the license and pay the associated renewal fees. You may terminate this License Agreement at any time. Licensor may terminate this License Agreement upon your breach of any term hereof or for any reason upon 90 days prior written notice to you. Upon termination by Licensor, you agree to discontinue usage and return or destroy all copies and portions of the Product.
- Warranty. LICENSOR WARRANTS THAT THE PRODUCTS WILL SUBSTANTIALLY CONFORM WITH THE FUNCTIONALITY DESCRIBED IN THE PRODUCTS’ TECHNICAL MANUALS. THIS WARRANTY DOES NOT APPLY IF THE PRODUCTS’ ERROR OR MALFUNCTION IS CAUSED BY MACHINE MALFUNCTION, BY NON-LICENSOR SOFTWARE MALFUNCTION, BY MODIFICATION NOT MADE BY LICENSOR OR BY INCORRECT PROCEDURES USED BY YOU. YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS WARRANTY ARE (1) THE CORRECTION OF THE PRODUCTS SO THAT THEY PERFORM AS WARRANTED; OR 2) IF, AFTER REPEATED EFFORTS, LICENSOR DETERMINES THAT IT IS UNABLE TO MAKE THE PRODUCTS PERFORM AS WARRANTED, YOU ARE ENTITLED TO RECOVER DAMAGES SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 6 OF THIS AGREEMENT.
- Limitation of Liability. Licensor’s cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement will not exceed the total amount paid by you to Licensor in License Fees. In no event shall Licensor be liable for any indirect, incidental, consequential, special, or exemplary damages or lost profits, even if Licensor has been advised of the possibility of such damages. THE ABOVE LIMITATION OR EXCLUSION MAY NOT BE ALLOWED BY ALL JURISDICTIONS.
- Trademark. The trademarks and copyrights listed in this License Agreement, on the Product, or related documentation are trademarks and copyrights of Licensor. No right, license, or interest to such trademarks and copyrights is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademarks and copyrights.
- Governing Law. This License Agreement shall be construed and governed in accordance with the laws of the State of Ohio.
- Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
- Severability. Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
- No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of such or any other such rights or any subsequent actions in the event of future breaches.
- Export. Licensee shall ensure that neither the Cincom Products, commodities, technology, or software, nor any direct product thereof are exported, directly or indirectly, in violation of the export laws and regulations of the United States of America including the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.
- Proprietary Information. Licensor and you acknowledge that proprietary and confidential information of Licensor or you (“Information”) may be disclosed and that the protection of this Information is of the highest importance. Licensor and you agree to keep the information in strict confidence, to take appropriate steps to ensure that persons authorized to have access to the Information shall refrain from any unauthorized reproduction, use or disclose of the Information unless otherwise required by law or previously known or within the public domain.
If you have any questions about this Limited License Agreement, or if you have any questions or comments about the Product, please contact your local Cincom sales office.
CINCOM SYSTEMS, INC. LIMITED VALUE ADDED REMARKETING SOFTWARE LICENSE AGREEMENT
SCHEDULE OF PRODUCTS
Product Code: CSQE
Number of Users: n/a
Description: Cincom Smalltalk Commercial Edition
LVAR License Charge: n/a
Product Code: VLCE
Number of Users: 1
Description: Cincom Smalltalk Value Added Reseller License
LVAR License Charge: $500.00
If Customer is not in default of the provisions of the Agreement or any Schedule thereto, Customer shall be entitled to receive all fixes, standard enhancements, or replacement versions of the Products licensed hereunder. The Support Services to be provided for error maintenance are:
- 800 number telephone support during Cincom’s normal business hours.
- contact with a product support specialist for severity one problems, i.e., production system down errors
- circumventions to product problems reported via the 800 number or Cincom SupportWeb
- fix distribution via maintenance releases or patch distribution
- access to Cincom SupportWeb
- dial-in access where available
Error maintenance will be provided in a reasonable manner consistent with the nature of the error. Cincom will have no obligation to provide error maintenance if any amounts due under the Agreement are past due, or if the warranty does not apply pursuant to Paragraph 5. If the warranty does not apply, Customer agrees to pay Cincom, at Cincom’s then current rates, for all services provided by Cincom in connection with error maintenance.
Cincom reserves the right to increase the LVAR License Charge for the licensed Products on an annual basis. Notice of any such increase shall be provided to Customer not less than 60 days prior to the end of the Subscription Term. This notice will be provided regardless if there is an increase or not.
Upon termination of this LVAR License, Customer must either renew the license for another year at the then current LVAR License Charge or discontinue usage of the Products listed on the Schedule, return or destroy the Products, and certify in writing to Cincom that all usage of the Products has been discontinued and the Products and all copies thereof have been returned to Cincom or destroyed.